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Non EEA national with PSS - eligibility for UC
Client, aged 24, is a non-EEA national who was granted PSS in 2019 as a stepchild of an EEA national. She has since moved out of the family home, started working, and has now had to stop working temporarily for health reasons.
I initially thought that she had a qualifying right to reside, and so could claim UC, on the basis that she was a worker, who retained her worker status due to having stopped working temporarily because of illness. But I now wonder whether, as a non-EEA national, the client needs to show that:
a) she is a family member of an EEA national; and
b) the EEA national has a qualifying R2R
I think that stepdad is working and so has a qualifying R2R. But my concern is whether the client is still his family member, as she is no longer living with him and her mother and so might not be regarded as his dependant.
Yes, your client being a worker is irrelevant as she is not an EEA national.
How long has your client been in the UK? Is there not a permanent residence argument?
She has only been here since 2019, I’m afraid.
Hello
If this non-EEA national has pre-settled status, obtained as a family member of an EEA national in the circumstances described on CPAG p1563, does that not confer upon them a ‘free movement’ right to reside (CPAG p1565)? So does that not mean that the worker status of the claimant is relevant, as they are covered by the ‘free movement’ right to reside rules (i.e. the pre-Brexit rules), despite not being an EEA national themselves? Assuming of course that the pre-settled status has not been revoked for any reason.
I may well be wrong on this - I am asking a question more than taking a view on it! I have come across a comparable case just this morning, so I have not done any reading beyond the relevant bits of CPAG as of yet (the bens for migrants handbook is in the office).
Any thoughts appreciated.
Cheers
Alex
European free movement rights are listed on pages 1568 and 1569 of the current CPAG handbook. Option two includes workers, but only if they are EEA nationals.
I haven’t done all the reading either, but I see Alex’s point. Isn’t there an argument that once you have been given Pre-Settled Status all you have to do is to complete your five years to get Settled Status, and in the meantime, if you need to claim benefits the PSS gives you the same rights as pre-2020 EEA qualified persons? Or would the argument be that you are still on your way to settled status, but in the meantime, if you cannot meet the requirement for Qualified Persons in the old regs, then you do not have access to benefits. I now see both points, so will just have to do the reading!
Hello
Again, I’m commenting without any confidence whatsoever on this.
So under reg 83 and schedule 4 of The Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020, ‘the provisions of the EEA Regulations 2016…continue to have effect in relation to a person who is a member of the post-transition period group…despite the revocation of those regulations’ (para 2 of schedule 4).
The ‘post-transition period group’ is defined in paragraph 1(b) of schedule 4 of the ISSC(CSTTP) regs as being anyone who has been granted residence according to the provisions set out in regulation 17 of European Union (Withdrawal Agreement) Act 2020. There is nothing to say that you have to be an EEA national yourself in order to be included in the post-transition period group, and thus have the 2016 apply to you.
So this could be seen as suggesting that it is solely the status you have been granted (i.e. whether it was granted under the provisions in reg 17 above), irrespective of your nationality, that dictates whether the provisions of the 2016 EEA regulations apply to you.
But then if we look at the 2016 regulations, they clearly only apply to the rights of EEA nationals and their families (what with them being roughly based on EU law). So there seems to be a contradiction there, because on the one hand, the Brexit regulations suggest that anyone in the post-transition period group (i.e. anyone with pre-settled status) is covered by the 2016 regulations, but on the other hand, the 2016 regulations (which have now been revoked) were in force to apply to only EEA citizens.
So that’s not very clear to me. But I may have got completely the wrong end of the stick anyway.
Any thoughts anyone?
Cheers
Alex
I think where you are getting confused is that whilst the transitional arrangements allow certain persons to rely on the EEA regs (which have otherwise been repealed), that does not change how the regs themselves operate. So they can only take advantage of the regs to the extent that they apply to the actual circumstances of that person.
A person who has PSS and is a German national who works in the UK can therefore say that they have a right to reside under reg 14(1) because they meet the definition of a qualified person under reg 6(1).
A person who has PSS and is a Brazillian national who works in the UK cannot say that because they do not meet the definition of a qualified person under reg 6(1) as that depends on their being an EEA national which they are not. So they would need to find some other provision of the regs to assist them, such as being a family member of a qualified person.
Someone who does not have PSS and hasn’t applied to the EUSS cannot draw any status at all from the regs, regardless of whether its provisions apply to them, because of the effects of the various post-Brexit legislation you refer to.
Many thanks Elliot for your response on this. I agree and think you are right in saying that if you aren’t an EEA national, then you can’t rely on the provisions in the 2016 regs even if you do have pre-settled status.
Many thanks Elliot for your response on this. I agree and think you are right in saying that if you aren’t an EEA national, then you can’t rely on the provisions in the 2016 regs even if you do have pre-settled status.
No - if you have pre-settled status, whether you are an EEA national or not, you are able to rely on the regs but only to the extent that the regs actually cover your situation.
It is as though the effect of pre-settled status (for present purposes at least) is that Brexit never happened. You have no greater or lesser access to benefit than you would have pre-Brexit.
A non-EEA national who has pre-settled status can rely on the regs to establish a right to reside as a family member of a qualified person, a family member of a permanent resident, a family member who has retained the right of residence, a permanent resident in their own right or a derivative right to reside (perhaps a couple of others). This is because being an EEA national is not a necessary element of those statuses.
However a non-EEA national cannot rely simply on the fact that they are in work to establish a right to reside. That is because a worker’s right to reside derives from their being a qualified person and being an EEA national is a necessary element of being a qualified person. A qualified person is defined in reg 6 as “a person who is an EEA national and in the United Kingdom as [...]a worker”. Even though the pre-settled status allows the person to rely on the regs, the regs themselves do not cover their situation so are of no assistance to that particular individual.
Thanks Elliot, that’s really useful.